A judge's obligation to consult precedent before deciding a case has been a core feature of the Rule of Law in the United States, whether the relevant source of law at issue is statutory, constitutional, or common law. If there is general agreement that a court's prior precedent has some significance for future decisions, there is virtually none about the extent to which the later court is obligated to defer to the earlier precedent.

This article, written for a symposium dedicated to the topic, “Originalism and Precedent,” suggests that conclusions about the founding era's commitment to stare decisis are seriously incomplete without studying the practices of state courts with respect to economic expectation interests. (Other contributors to this symposium include Steve Smith, University of San Diego School of Law, Gary Lawson, Boston University, and Stephen B. Presser, Northwestern University School of Law.) The earliest articulations of the concept of precedent in the United States explicitly link stare decisis to property rules. In the formative era, state court judges invoked the predominant property discourse of vested rights and the Contracts Clause to preserve property rules that they believed necessary to avoid disrupting settled transactions, at least when property reliance interests were at stake. This is important because most civil cases of that period involved property or contract disputes, and these judges tended to view the common law as a mechanism for ordering relations between individuals in terms of property rights. Many judges imposed upon themselves external limits on discretion to change law, and these limits are readily linked to political rhetoric from the founding era emphasizing the sanctity of private property.

This historical understanding of the role of precedent is equivalent to the modern “judicial takings” debate, which asks whether state courts can effectively police their own boundaries with respect to the settled property expectations that legislatures are constitutionally bound to respect. The rhetoric used in the post-founding period through the Civil War suggests many state court judges believed that they should. Many state courts recognized the possibility that changes to common-law rules could deprive citizens of property interests, and sought to guard against it. The rhetoric of courts in the formative era makes clear that the stare decisis property rule had an ideological purpose – a pragmatic concern for economic stability.